Guardian and Wards Act, 1890 – ss. 7, 9 and 25 – Custody of two minor children – Family Court granted permanent custody of minor children to the father-serving Army Officer and provided visitation rights to the mother – However, the High Court set aside the order and granted the parties shared custody of the minor children – Challenge to:
Held: Principal consideration whilst deciding an application for guardianship under the Act in exercise of its parens patriae jurisdiction would be the ‘welfare’ of the minor children – Dispute must be decided on the basis of a holistic and all encompassing approach including inter alia the socio economic and educational opportunities made available to the minor children; healthcare and overall well being of the children; the ability to provide physical surroundings conducive to growing adolescents; the preference of the minor children as also stability of surroundings of the minor children – On facts, unwavering and strong desire of the children to continue to reside with the father – Said desire/preference although in itself cannot be determinative of custody of the children, but must be given due consideration – As regards, upbringing and welfare of the minor children, the Indian Armed Forces provides a robust support system to the kin of its officers which undoubtedly, aids in the mental stimulation, growth and overall development of personality of a child – Nothing on record to suggest that the interests and welfare of the minor children were in any manner affected during their stay with the father – Furthermore, the father could not have been said to have engaged or propagated ‘alienating behaviour’ as alleged by the mother – High Court failed to appreciate the said nuance and proceeded on an unsubstantiated assumption that allegations of parental alienation could not be ruled out, despite the stark absence of any instances of ‘alienating behaviour’ having been identified by any Court – High Court neither correct nor justified in interfering with the order passed by the Family Court – In view thereof, it is just and appropriate that the custody of the minor children is retained by the father, subject to the visitation rights of the mother as granted by the Family Court. [Paras 8, 12, 13, 14, 16, 24-27]
Child and family welfare – Child custody dispute – ‘Parental alienation syndrome’-PAS – Concept of:
Held: ‘Parental alienation syndrome’-PAS is a thoroughly convoluted and intricate phenomenon requiring serious consideration and deliberation – Recognising and appreciating the repercussions of PAS certainly shed light on the realities of longdrawn and bitter custody and divorce litigations on a certain identified sect of families – However, there can be no straitjacket formula to invoke the principle of PAS laid down by this Court in *Vivek Singh’s case – Courts ought not to prematurely and without identification of individual instances of ‘alienating behaviour’, label any parent as propagator and/or potential promoter of such behaviour – Said label has far-reaching implications which must not be imputed or attributed to an individual parent routinely – Courts must endeavour to identify individual instances of ‘alienating behaviour’in order to invoke the principle of parental alienation so as to overcome the preference indicated by the minor children. [Paras 18-20, 22, 23]
Child and family welfare – Child custody dispute – Upbringing and welfare of the minor children – Effect of the nature of employment of father serving in Indian Armed forces: Held: Indian Armed Forces provides a robust support system to the kin of its officers so as to ensure minimal disruption in the lives of the civilian members of an officer’s family – This support system includes residential accommodation, a network of army schools, hospitals and healthcare facilities – Moreover, various extra-curricular activities, recreational clubs; and other social and cultural functions are made available for the benefit of the kin of officers of the Indian Armed Forces – Said support system undoubtedly, aids in the mental stimulation, growth and overall development of personality of a child. [Para 16]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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